Wesley Alex Pearson v. S. B. Cox

The opinion of the court was delivered by: Honorable George H. WU United States District Judge

ORDER RE: MOTION TO AMEND JUDGMENT (FED. R. CIV. P. 59)

I.

INTRODUCTION

On April 11, 2011, Wesley Alex Pearson ("Petitioner"),
constructively filed a Petition for Writ of Habeas Corpus by a Person
in State custody pursuant to 28 U.S.C. § 2254 ("Petition").*fn1
(ECF No. 1.) On August 31, 2011, Respondent filed
a Motion to Dismiss the Petition as untimely. (ECF Nos. 10, 11.) On
November 22, 2011, the Court issued a Report and Recommendation of
United States Magistrate Judge, recommending the denial of the
Petition as untimely and dismissal of this action with prejudice. (ECF
No. 21.) On January 20, 2012, Petitioner filed Objections to the
Report and Recommendation. (ECF No. 28.)

On March 1, 2012, the Court issued a Final Report and Recommendation, addressing Petitioner's Objections with regard to equitable tolling but again recommending the denial of the Petition as untimely. (ECF No. 29.) It was not the Court's intention for the Final Report and Recommendation to be sent out for further objections. Nevertheless, on March 19, 2012, Petitioner filed a Motion to Amend the Final Report and Recommendation, along with supporting exhibits. (ECF No. 30.) In the Motion to Amend, Petitioner appeared to provide justification for the delay in filing his state habeas petitions which, if accepted, could warrant gap tolling and render the current Petition timely. As a result, on April 13, 2012, the Court ordered the parties to submit supplemental briefing and/or exhibits. (ECF No. 31.)

On February 1, 2013, the Court issued a Second Final Report and Recommendation, again recommending the denial of the Petition as untimely. (ECF No. 41.) As with the Final Report and Recommendation, it was not the Court's intention for the Second Final Report and Recommendation to be sent out for further objections. Rather, it was to be forwarded directly to the District Judge. However, the Second Final Report and Recommendation was inadvertently issued and placed on the docket. (ECF No. 41.) On February 4, 2013, the Court issued an order striking the issuance of the Second Final Report and Recommendation due to the clerical error. (ECF No. 42.) The Second Final Report and Recommendation was then forwarded directly to the District Judge. On February 7, 2013, an Order was entered accepting Second Final Report and Recommendation, Judgment was entered granting Respondent's Motion to Dismiss the Petition as untimely, denying the Petition, and dismissing the action with prejudice, and an Order was entered denying the issuance of a certificate of appealability. (ECF Nos. 43-45.)

On March 7, 2013, Petitioner filed a "Motion to Amend Judgment" pursuant to Rule 59 of the Federal Rules of Civil Procedure ("Motion to Amend"). (ECF No. 49.) For the reasons set forth below, the Court denies Petitioner's Motion to Amend.

II.

DISCUSSION

A. Rule 59 of the Federal Rules of Civil Procedure.

Rule 59 of the Federal Rules of Civil Procedure allows for the amendment of findings of fact and conclusions of law, and the entry of a new judgment after a non-jury trial. Fed. R. Civ. P. 59(a)(2). A motion to alter or amend the judgment under Rule 59(e) may be granted if: (1) the district court is presented with newly discovered evidence; (2) the district court committed clear error or made an initial decision that was manifestly unjust; or (3) there is an intervening change in controlling law. Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). However, it is not an opportunity for parties to "raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).

In his Motion to Amend, Petitioner appears to contend that amendment is appropriate because when the Second Amended Report and Recommendation was stricken from the record, the Magistrate Judge "vacated his own ruling." (ECF No. 49 at 1.) Such is not the case. As stated above, it was not the Court's intention for the Second Final Report and Recommendation to be sent out for further objections. Rather, it was to be forwarded directly to the District Judge. However, it was inadvertently issued and placed on the docket. (ECF No. 41.) Due to the clerical error, the Court issued an order striking the issuance of the Second Final Report and Recommendation (ECF No. 42), then forwarded it to the District Judge. The Magistrate Judge did not "vacate his own ruling" as Petitioner contends.

Further, Petitioner does not contend that the district court has been presented with newly discovered evidence, that the district court committed clear error or made an initial decision that was manifestly unjust, or that there is an ...

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